The central legal point established in the judgment is the exercise of the appellate Court's power under Order 41, Rule 33, CPC to afford an opportunity to the respondents to pay the court-fee on the counter-claim.

( 1 ) APPELLANTS have filed present appeal against order of remand dated 15-12-1997 by which learned lower appellate Court while remanding the matter has afforded an opportunity to the respondents to affix court-fee on counter-claim with certain observations. Learned trial Court has not considered the counter-claim only on the ground that the respondents have not paid court-fee on it.

( 2 ) LEARNED counsel appearing for the appellants submits that lower appellate Court committed an error in allowing respondents/defendants to pay the court-fee on counter-claim and wrongly exercised its power giving opportunity to the respondents to pay the court-fee and enlarged the scope. On the contrary, learned counsel for the respondents submits that the learned lower appellate Court has exercised its power under Order 41, Rule 33 of the Code of Civil Procedure and has done the justice in the case while affording opportunity to the respondents to pay the court-fee on counter-claim.

( 3 ) FROM perusal of the counter-claim which was filed alongwith the written statement, it appears that the respondents in para 10 have made the counter-claim and valued the counter-claim at 20 times of land revenue which comes to Rs. 50/- and court-fee was payable Rs. 5%. It appears that due to oversight aforesaid court-fee, which was a meagre was not paid. Learned trial Court has considered this aspect in para 6 of the judgment and has rejected the counter-claim only on the ground that the court-fee was not paid.

( 4 ) REJECTION of the counter-claim can be ordered under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred as CPC), because Order 8, Rule 6-A, CPC provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. Order 7, Rule 11, CPC provides, where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. From the perusal of the record, it appears that the trial Court has not passed such an order and rejected the counter-claim while deciding the case finally. In view of this, learned lower appellate Court has rightly exercised the power under Order 41, Rule 33 by providing an opportunity to respondents to pay court-fee on counter-claim. Apex Court considered power of appellate Court under Order 41, Rule 33, CPC in M/s Bihar Supply Syndicate v. Asiatic Navigation, AIR 1993 SC 2054 held :"29. Really speaking the Rule is in three parts. The first part confers on the appellate Court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents of parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. "

( 5 ) IN view of the aforesaid, lower appellate Court has rightly exercised power under Order 41, Rule 33, CPC by providing an opportunity to respondents to pay court-fee on counter-claim. In view of this, this appeal has no merit and is dismissed with no order as to costs.

( 6 ) AS both the parties are present, the parties are directed to remain present before the trial Court on October 21, 2002 for which date no notice will be necessary. Petition dismissed.

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